The Council of Better Business Bureaus’ National Advertising Division (NAD) has reportedly decided to review “no crash later” claims made by Living Essentials LLC about its caffeinated energy supplement 5-Hour Energy® after The New York Times published a January 2, 2013, article questioning the scientific evidence behind such assertions. According to media sources, NAD ruled in 2007 that Living Essentials could not support its unequivocal “no crash” claims, even though its product evidently causes less of an energy level reduction than beverages made by its competitors. As a result, Living Essentials modified its labeling to include an asterisk on its “no crash later” declaration, but NAD has apparently advised the company to drop the claim altogether or submit to a compliance review. See Law360, January 3, 2013.

The claim now facing NAD scrutiny also caught the attention of Times writer
Barry Meier, who noted that energy drink manufacturers demand premium
prices by promoting their products “not as caffeine-fueled concoctions but as
specially engineered blends that provide something more.” In particular, Meier
argues that scientific studies have not borne out the alleged physical and
mental benefits of various proprietary formulas or individual additives such
as glucuronolactone and taurine. With regard to 5-Hour Energy®, Meier notes
that Living Essentials founded its “no crash later” claims on a study based in
“the office of a proctologist in a small Maine town” and has yet to produce
evidence undergoing peer review.

“Ms. Lutz, the Living Essentials spokeswoman, said the bold ‘No Crash Later’ statement on product was followed by a special mark. That mark, which also appears on the back of the label, explains in fine print that ‘no crash means no sugar crash,’” opines Meier. “That is hardly surprising, because 5-Hour Energy® does not contain sugar.”

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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